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Readingsample The CISG A new textbook for students and practitioners. Bearbeitet von Peter Huber, Alastair Mullis 1. Auflage 2007. Taschenbuch. XXIII, 408 S. Paperback ISBN 978 3 86653 020 1 Format (B x L): 14,1 x 22,4 cm Gewicht: 562 g Recht > Handelsrecht, Wirtschaftsrecht > Europäisches, internationales Wirtschaftsrecht Zu Inhaltsverzeichnis schnell und portofrei erhältlich bei Die Online-Fachbuchhandlung beck-shop.de ist spezialisiert auf Fachbücher, insbesondere Recht, Steuern und Wirtschaft. Im Sortiment finden Sie alle Medien (Bücher, Zeitschriften, CDs, eBooks, etc.) aller Verlage. Ergänzt wird das Programm durch Services wie Neuerscheinungsdienst oder Zusammenstellungen von Büchern zu Sonderpreisen. Der Shop führt mehr als 8 Millionen Produkte. The CISG A new textbook for students and practitioners Peter Huber Alastair Mullis Peter Huber, Dr. iur., LL.M. (London), Professor of Private Law, Private International Law and Comparative Law at the Johannes Gutenberg-University Mainz (Germany); present website: www.jura.uni-mainz.de/huber. Alastair Mullis, LL.M. (Cantab), Professor of Law at the University of East Anglia Norwich (England). ISBN 978-3-86653-020-1 Die Deutsche Nationalbibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografi e; detaillierte bibliografi sche Daten sind im Internet über http://dnb.d-nb.de abrufbar. © 2007 by sellier. european law publishers. Information contained in this book has been obtained by the publisher from sources believed to be reliable. However, neither the publisher nor its authors gurantee the accuracy or completeness of any information published herein. Neither the publisher nor its authors shall be responsible for any errors, omissions or damages arising from the use of this information. Neither the publisher nor its authors are attempting to render legal or other professional services. If such services are required, the assistance of an appropriate professional should be sought. Dieses Werk einschließlich aller seiner Teile ist urheberrechtlich geschützt. Jede Verwertung außerhalb der engen Grenzen des Urheberrechtsgesetzes ist ohne Zustimmung des Verlages unzulässig und strafbar. Das gilt insbesondere für Vervielfältigungen, Übersetzungen, Mikroverfi lmungen und die Einspeicherung und Verarbeitung in elektronischen Systemen. Gestaltung: Sandra Sellier, München. Herstellung: Karina Hack, München. Druck und Bindung: Friedrich Pustet KG, Regensburg. Gedruckt auf säurefreiem, alterungsbeständigem Papier. Printed in Germany. Part 1: Introduction and general issues1 § 1. Introduction Today, international sales contracts are frequently governed by the 1980 UN Convention on Contracts for the International Sale of Goods (CISG). The CISG is in force in more than 60 States from all parts of the world, among them both industrial nations and developing states. It has been widely ap- plied in international commercial transactions in the past twenty years with more than 1500 decisions by state courts and arbitral tribunals having been reported so far.2 It therefore seems fair to say that the CISG has in fact been one of the success stories in the fi eld of the international unifi cation of pri- vate law.3 The CISG applies to contracts of sale of moveable goods between parties which have their place of business in different states when these States are Contracting States (Art. 1(1) lit. (a) CISG) or when the rules of private international law lead to the application of the law of a contracting state (Art. 1(1) lit. (b) CISG).4 Certain types of contracts are excluded from its scope of application by virtue of Art. 2 CISG. By way of example, most con- sumer sales will not fall under the CISG (cf. Art. 2 lit. (a) CISG). With regard to the substantive issues, the CISG basically governs three areas: the conclusion of the contract, the obligations of the seller including the respective remedies of the buyer and the obligations of the buyer including the respective remedies of the seller. The CISG therefore provides both a 1 For a shortened version of this Part see P. Huber, Internationales Handelsrecht (IHR) 2006, 228. 2 See for instance the following databases: www.cisg.law.pace.edu/; www.unilex.info; www.cisg-online.ch; www.uncitral.org/uncitral/en/case_law.html. 3 See for example Zimmermann, Rabels Zeitschrift für ausländisches und internation- ales Privatrecht (RabelsZ) 71 (2007), 1. But see also Reimann, Rabels Zeitschrift für ausländisches und internationales Privatrecht (RabelsZ) 71 (2007), 115. 4 Several states have however declared a reservation against the application of the rule in Art. 1(1) lit. (b) CISG under Art. 95 CISG. Peter Huber 2 Part 1: Introduction and general issues substantive “law of sales” and a regulation of certain issues of the general law of contract, albeit limited to those international sales transactions which fall under its scope of application. I. History and background of the CISG The CISG is the result of a rather long process which started in the 1920s and was initially guided by the International Institute for the Unifi cation of Private Law (UNIDROIT) and the Hague Conference for Private Inter- national Law, then by the United Nations Commission on International Trade Law (UNCITRAL).5 1. Ernst Rabel, UNIDROIT and the Hague Uniform Law of International Sales (ULIS) The story of the international unifi cation of the law of sales contracts is in- extricably linked to the Austrian scholar and academic Ernst Rabel (1874- 1955). Rabel not only prepared the basis for any comparative study of the modern law of sales in his epochal treatise “Das Recht des Warenkaufs”6, but he also initiated the process of world-wide harmonisation of the law of (in- ternational) sales. In 1928, Ernst Rabel suggested to the newly established (1926) UNIDROIT Institute that it adopt the unifi cation of the law of inter- national sales of goods as one of its fi rst projects. One year later, Rabel sub- mitted a preliminary report to UNIDROIT and in 1930 UNIDROIT set up a committee charged with the elaboration of a uniform law for international sales. Between 1930 and 1934 the committee, of which Ernst Rabel had since become a member, met eleven times and in 1934 it submitted a preliminary draft,7 which was, of course, considerably infl uenced by the comparative stud- ies on the law of sales which Rabel and his colleagues at the Berlin Institute for international and foreign private law had undertaken. After comments from member states of the League of Nations, the Governing Council of UNIDROIT adopted in 1939 a revised version of the draft. 5 For a short account see Bonell, in: Bianca/Bonell, Commentary, ‘Introduction’ para. 3 et seq. See also P. Huber, in: Reimann/Zimmer mann (eds.), The Oxford Handbook of Comparative Law, 2006, p. 938 et seq. 6 Rabel, Das Recht des Warenkaufs, Vol. 1 (1936), Vol. 2 (1957). 7 Rabel could, however, not attend the fi nal session in 1934, because Germany had in the meantime left the League of Nations, cf. Rabel, Der Entwurf eines Einheitlichen Kaufgesetzes, Rabels Zeitschrift für ausländisches und internationa- les Privatrecht (RabelsZ) 9 (1935), 3 et seq. Peter Huber § 1. Introduction 3 The Second World War interrupted the work on the harmonisation of inter- national sales law, but in 1951 the government of the Netherlands convened a Conference in The Hague which appointed a special Sales Commission. Ernst Rabel – now living in the U.S. – was a member of this Commission and again had a considerable impact on its work until his death in 1955. The Sales Commission produced two drafts which were generally well received by the interested authorities and in 1964 a Diplomatic Conference was convened in The Hague which adopted two Conventions: the Convention on a Uniform Law of International Sales (ULIS) and the Convention on a Uniform Law on the Formation of Contracts for the International Sale of Goods (ULFC). Both Conventions entered into force in 1972. They proved however unsuccessful as only a very limited number of (mostly European) states ratifi ed them and they were not widely applied in international trade.8 2. UNCITRAL and the 1980 Convention While the process of ratifi cation of ULIS and ULFC was still pending, a new player entered the fi eld of the international harmonisation of commercial law: the United Nations Commission on International Trade Law (UNCITRAL) which was established in 1966. After consulting the Member States of the UN on their assessment of both Hague Conventions, UNCITRAL decided in 1968 to set up a Working Group in order to modify the Conventions or to produce a new text which would have a better chance of being accepted world-wide. The Working Group in 1978 submitted a Draft Convention (the “New York Draft”) which covered both the specifi c rules on sales and the rules on the formation of a sales contract and in the same year the UN de- cided to convene a Diplomatic Conference on this matter. The Diplomatic Conference took place in Vienna in spring 1980. After intense deliberations and several modifi cations of the New York Draft the Conference fi nally adopted the 1980 UN Convention on Contracts for the International Sale of Goods (CISG, often called Vienna Convention). The CISG entered into force in January 1988 for eleven states; since then the number of contracting states has been steadily growing.9 8 Schlechtriem, in: Schlechtriem/Schwenzer, Commentary, ‘Introduction’ para. 1; Bonell, in: Bianca/Bonell, Commentary, ‘Introduction’ para. 1.2. 9 For the history of the CISG see: Schlechtriem, in: Schlechtriem/Schwenzer, Com- mentary, ‘Introduction’ para. 1 et seq. (with further references). Peter Huber 4 Part 1: Introduction and general issues II. Structure of the CISG The Convention is divided into four parts: (1) The fi rst part (Art. 1-13 CISG) contains rules on its sphere of application (Chapter I, Art. 1-6 CISG) and a number of general provisions (Chapter II, Art. 7-13 CISG).
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